Citation Nr: 21009927 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 12-04 086 DATE: February 23, 2021 ORDER Entitlement to compensation benefits under the provisions of 38 U.S.C. § 1151 for dissection of the right coronary artery, claimed to have been caused by a cardiac catheterization performed by the Department of Veterans Affairs (VA) in January 2006, is denied. FINDINGS OF FACT 1. The Veteran has an additional disability of dissection of the right coronary artery caused by a cardiac catheterization performed by VA in January 2006. 2. Dissection of the right coronary artery is a known potential complication of cardiac catheterization. 3. The Veteran’s dissection of the right coronary artery is not due to negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing medical care. CONCLUSION OF LAW The criteria for compensation under the provisions of 38 U.S.C. § 1151 for causation or aggravation of an additional disability of dissection of the right coronary artery have not been met. 38 U.S.C. §§ 1151, 5103, 5103A; 38 C.F.R. §§ 3.154, 3.159, 3.361. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran, who is the appellant, had active service from August 1972 to November 1977. This appeal comes to the Board of Veterans’ Appeals (Board) from a September 2009 rating decision by the VA Regional Office (RO) in St. Petersburg, Florida. In May 2016, the Board obtained a Veterans Health Administration (VHA) medical opinion with respect to the issue on appeal. After receiving the VHA opinion, in a September 2016 decision, the Board remanded to attempt to obtain potentially outstanding relevant records. The record reflects that the agency of original jurisdiction (AOJ) obtained the available records to the extent possible and returned the case to the Board. Upon the matter being returned to the Board, VA obtained an addendum VHA opinion in August 2019. As such, the Board finds that its prior remand directives were satisfied. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Subsequently, in a November 2019 decision, the Board reopened and denied the issue of compensation benefits under the provisions of 38 U.S.C. § 1151 for dissection of the right coronary artery. The Veteran appealed the November 2019 Board decision to the United States Court of Appeals for Veterans Claims (Court). In an Order dated October 2020, the Court granted a Joint Motion for Partial Remand (JMR), which remanded the 38 U.S.C. § 1151 benefits denial back to the Board for development consistent with the JMR. The Board thoroughly addresses the JMR findings and concerns below. See Forcier v. Nicholson, 19 Vet. App. 414 (2006). In May 2015, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge in St. Petersburg, Florida (a Travel Board hearing). A transcript of the hearing is of record. The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). Concerning the duty to notify, the record reflects that the Veteran received adequate VCAA notice prior to the issuance of the September 2009 rating decision on appeal Regarding the duty to assist, the record reflects that VA obtained all relevant documentation to the extent possible. Unfortunately, while VA was able to obtain all VA and private treatment records relevant to the January 2006 VA cardiac catheterization, the VA medical center (VAMC) procedures relating to emergent transfers and times for transfer in effect in January 2006 are unavailable as such records have been destroyed. As the records have been destroyed, remand to once again attempt to obtain these records would not be fruitful. VA was able to obtain the oldest available records concerning emergent transfers and times for transfer, and such documents have been associated with the record. In its November 2019 decision, the Board noted that during the course of the appeal the Veteran challenged the adequacy of the November 2006 VA 38 U.S.C. § 1151 examination and opinion, as it was performed by a staff physician who admitted to lacking expertise in cardiology; however, the Board found that, upon review of the opinion report, the report showed that after examination the report was reviewed by the VAMC cardiology staff, who offered an expert opinion on the matter. As such, the Board found the November 2006 opinion to be adequate for VA rating purposes. Further, the Board also found the May 2016 VHA opinion and August 2019 addendum opinion to be adequate for VA rating purposes. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Per the October 2020 JMR, the parties agreed that the Board failed to provide adequate reasons and bases for its finding that the November 2006 VA 38 U.S.C. § 1151 examination and opinion was adequate. Specifically, the parties agreed that the Board “failed to respond precisely to Appellant’s challenge to the VA examiner’s competency.” As explained in the JMR, the Veteran argues that the VA staff physician was not competent to perform the VA heart and arteries/38 U.S.C. § 1151 examination and/or to provide an opinion, because, by the VA staff physician’s admission, the VA staff physician had never performed an angiogram; therefore, the Veteran argues that the examination and any opinions provided by the VA staff physician should have been performed/rendered by a cardiologist. For the reasons discussed below, the Board finds that the VA staff physician had adequate expertise to perform the November 2006 examination and was competent to render the opinions he did. To challenge the competency of a medical examiner, a veteran is required to raise this challenge in the first instance. Francway v. Wilkie, 940 F.3d 1304 (Fed. Cir. 2019). Once the claimant has met this requirement and the challenge is raised, VA must satisfy its burden of persuasion as to the examiner’s qualifications. Id. A limited exception to the requirement that claimants expressly challenge VA’s selection of a medical examiner before the Board is where there is evidence of facially obvious issues of competence actually or constructively before the Board. Fears v. Wilkie, 31 Vet. App. 308 (2019). The probative value of medical opinion evidence is based on the medical expert’s personal examination of the patient, the physician’s knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Other factors for assessing the probative value of a medical opinion are the physician’s access to the claims folder and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Per the November 2006 VA examination, the VA staff physician noted that the entire claims file was reviewed. From there, the VA staff physician gave an accurate history of the facts and timeline relevant to the 38 U.S.C. § 1151 benefits question on appeal. Nothing indicates that this record review would have been any different had it been performed by a cardiologist, or other specialist, rather than by the VA staff physician. This finding is supported by the fact that both the VA staff physician in November 2006 and a VHA cardiologist in May 2016 provided essentially the same history in their reports. Next, after reviewing the claims file, the VA examiner took a history from the Veteran and performed a physical examination. The examination included taking the Veteran’s weight, height, pulse, respiration, and blood pressure. The VA staff physician noted that the Veteran had an implanted pacemaker and a well-healed incision scar. A heart examination was also performed. Following the physical examination the VA staff physician reported that “[d]iagnostic testing relevant to this examination includes catheterization report describing events as above and echocardiograms, which have shown globally reduced left ventricular systolic function and severely reduced ejection fractions, variously reported in the 25% range or less.” There is no indication that a more in-depth history or a more detailed physical examination would have been performed by a cardiologist and/or a physician with experience performing angiograms. Such a finding is supported by the May 2016 VHA cardiologist opinion report, in which the cardiologist specifically conveyed missing information that would be necessary for a more detailed/in-depth opinion. The cardiologist made no mention of the November 2006 VA physical examination being inadequate, or that a more in-depth physical examination was necessary. Had the VA staff physician’s examination been inadequate, the Board finds that the VHA cardiologist would have stated as such. For the above reasons, the Board finds that the VA staff physician was competent to conduct the November 2006 record review and physical examination. Nothing of record indicates that the examination would have been more thorough and/or complete if performed by a cardiologist, other appropriate specialist, or a staff physician with experience performing angiograms. Had an examination by a cardiologist been necessary, the VHA cardiologist would have made such a finding in the May 2016 VHA opinion. Next, the Board will address the VA staff physician’s relevant findings/opinions in November 2006. First, the VA staff physician opined that the Veteran has an additional disability of dissection of the right coronary artery caused by a cardiac catheterization performed by VA in January 2006. This is the same opinion rendered by a VHA cardiologist in May 2016; therefore, the evidence supports that the VA staff physician was competent to render an opinion concerning any surgical heart procedure residuals. The evidence of record, to include a VHA opinion from a cardiologist, does not support that there are any other relevant surgical residuals that would have been identified had a cardiologist, other appropriate specialist, or staff physician with experience performing angiograms performed the November 2006 VA examination. Second, the VA staff physician opined that arterial dissection is a known and recognized complication of catheterization. As this is a finding that can be researched and confirmed via the medical literature, the Board does not find that this opinion needed to be rendered by a cardiologist, other relevant specialist, or staff physician with experience performing angiograms; rather, the Board finds the VA staff physician competent to render such an opinion. Such a finding is supported by the May 2016 VHA opinion report in which a cardiologist specifically opined that coronary artery dissection during diagnostic cardiac catheterization is a rare, but known and widely recognized, complication. Finally, the Board notes that the November 2006 VA examination and opinion report contains an addendum opinion with three additional findings/opinions included: 1) that the Veteran sustained a complication of dissection that was a known and recognized complication of the procedure; 2) that the complication was identified and managed properly; and 3) that there were no major deviations from accepted standards of practice. While the VA staff physician drafted the addendum opinion, review of the addendum opinion reflects that the VA staff physician did not render these opinions himself. Rather, the VA staff physician explained that VAMC cardiology staff reviewed the record and provided their expert opinions. As the VA examination report clarifies that these three opinions were not rendered by the VA staff physician, but were provided by VAMC cardiologists, the Board need not address the question of whether the VA staff physician was competent to render such opinions. For the reasons discussed above, the Board finds that the VA staff physician in November 2006 was competent to review and discuss the claims file evidence relevant to the 38 U.S.C. § 1151 benefits on appeal, was competent to perform a physical examination of the Veteran, and was competent to render opinions concerning whether there were any complications from the surgical procedure and whether any such complications were a known complication of the procedure. Further, the evidence does not support that additional evidence would have been obtained had the examination been performed by a cardiologist or other appropriate specialist. To the extent that the Veteran and representative argue that the examination and opinions should have at least been rendered by a VA staff physician with experience in angiograms, the Board notes that the VA staff physician’s findings and opinions in November 2006 were essentially the same as that rendered by a VHA cardiologist on May 2016. Such consistency supports that the VA staff physician was both competent and well qualified to perform the November 2006 VA examination. Further, in the areas where the VA staff physician did, in fact, lack expertise, the VA staff physician did not render an opinion on such matters. Rather, the VA examiner obtained expert opinions from VA cardiology staff. As the Board has found the VA staff physician was competent and qualified to perform the examination and render various limited opinions at the time of the November 2006 VA heart and arteries/38 U.S.C. § 1151 examination, the Board finds the duty to assist the Veteran in this case has been fulfilled, and remand to obtain a new VA examination from a cardiologist is unnecessary. For these reasons, the question of entitlement to compensation benefits under the provisions of 38 U.S.C. § 1151 for dissection of the right coronary artery claimed to have been caused by a cardiac catheterization performed by VA in January 2006 is ripe for adjudication. Compensation Under 38 U.S.C. § 1151 Compensation under the provisions of 38 U.S.C. § 1151 shall be awarded for a qualifying additional disability or a qualifying death of a veteran in the same manner as if such additional disability or death were service-connected. A disability is a qualifying additional disability if (1) the disability was not the result of the veteran’s willful misconduct; (2) was caused by hospital care, medical or surgical treatment, or examination furnished to the veteran under any law administered by VA either by a VA employee or in a VA facility; and (3) the proximate cause of the disability was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, medical or surgical treatment, or examination; or an event not reasonably foreseeable. In determining whether a veteran sustained additional disability, VA compares his or her condition immediately before the beginning of the hospital care or medical or surgical treatment upon which the claim is based to his or her condition after such care or treatment has stopped. 38 C.F.R. § 3.361(b). To establish causation, the evidence must show that the hospital care or medical or surgical treatment resulted in the veteran’s additional disability or death. Merely showing that a veteran received care or treatment and that the veteran has an additional disability, or died, does not establish cause. 38 C.F.R. § 3.361(c)(1). Hospital care or medical or surgical treatment cannot cause the continuance or natural progress of a disease or injury for which the care or treatment was furnished unless VA’s failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. 38 C.F.R. § 3.361(c)(2). Additional disability or death caused by a veteran’s failure to follow properly given medical instructions is not caused by hospital care, medical or surgical treatment, or examination. In addition, the proximate cause of death is the action or event that directly caused the death, as distinguished from a remote contributing cause. 38 C.F.R. § 3.361(c)(3). To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA’s part in furnishing hospital care, medical or surgical treatment, or examination proximately caused a veteran’s additional disability or death, it must be shown that the hospital care or medical or surgical treatment caused the veteran’s disability or death; and (1) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (2) VA furnished the hospital care or medical or surgical treatment without the veteran’s informed consent. 38 C.F.R. § 3.361(d)(1). Determinations as to whether there was informed consent involve consideration of whether the health care providers substantially complied with the requirements of 38 C.F.R. § 17.32. Minor deviations from the requirements of 38 C.F.R. § 17.32 that are immaterial under the circumstances of a case will not defeat a finding of informed consent. 38 C.F.R. § 3.361(d)(1). Whether the proximate cause of an additional disability was an event not reasonably foreseeable is in each claim to be determined based on what a reasonable health care provider would have foreseen. The event need not be completely unforeseeable or unimaginable, but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. In determining whether an event was reasonably foreseeable, VA will consider whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32. See 38 C.F.R. § 3.361(d)(2). The Board has thoroughly reviewed all the evidence in the Veteran’s claims file and adequately addresses the relevant evidence in the instant decision. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, every piece of evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). As reiterated in the November 2006 VA 38 U.S.C. § 1151 opinion report, the relevant facts are as follows: [A]fter suffering a severe viral illness, [the Veteran] developed symptoms of congestive heart failure and was hospitalized at a VA facility in January 2006. [The Veteran] underwent a variety of cardiac tests and eventually had a cardiac catheterization. During the catheterization, [the Veteran] developed a dissection of a dominant right coronary artery. This required emergent transport to a non VA healthcare facility where he underwent repeat catheterization and placement of two stents. [The Veteran] was discharged but subsequently did require the implantation of a cardiac pacer defibrillator because of his very low ejection fraction and ventricular arrhythmias. The Veteran seeks compensation benefits under the provisions of 38 U.S.C. § 1151 for additional disability due to the cardiac catheterization performed by VA in January 2006. Essentially two arguments have been advanced by the Veteran. First, that VA was at fault in its performance of the January 2006 catheterization, and second, that VA was at fault in the amount of time it took to transfer the Veteran to a private hospital for treatment of the right coronary artery dissection. Initially, the Board notes that the Veteran has an additional disability of dissection of the right coronary artery caused by a cardiac catheterization performed by VA in January 2006. This additional disability was diagnosed by both the VA examiner in November 2006 and by the VHA cardiologist in May 2016. Next, as to the question of reasonably foreseeability, the Board finds that dissection of the right coronary artery is a known potential complication of cardiac catheterization. Per the November 2006 VA 38 U.S.C. § 1151 opinion report, both a VA staff physician and the VAMC cardiology staff reported that dissection is a known and recognized complication of cardiac catheterization. Further, the VHA cardiologist also reported that “coronary artery dissection during diagnostic cardiac catheterization is a rare, but known and widely recognized complication” in the May 2016 VHA opinion. As dissection of the right coronary artery is a known potential complication of cardiac catheterization, the Veteran was informed of this complication and gave informed consent prior to the procedure. Per a January 2006 VA treatment record, prior to the cardiac catheterization the Veteran was informed of the potential complications of the procedure, up to and including death, after which the Veteran gave informed consent. Further, at the May 2018 Travel Board hearing, the Veteran testified that he believed he signed an informed consent form prior to the medical procedure. Concerning the question of negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing medical care as to the cardiac catheterization procedure itself, the Board finds that the dissection of the right coronary artery, while an unfortunate complication of the procedure, was not due to negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the medical care. The complication was not caused by VA’s failure to exercise the degree of care that would be expected of a reasonable health care provider. Per the November 2006 VA 38 U.S.C. § 1151 opinion report, after reviewing the relevant evidence of record, the VAMC cardiology staff opined that 1) the dissection of the right coronary artery was identified and managed properly, and 2) that their review of the procedure did not reveal any major deviations from accepted standards of practice. This opinion is supported by the opinion of the VHA cardiologist in May 2016 who, upon reviewing the relevant evidence of record, opined that the initial cardiac catheterization was appropriate. Finally, the Board will address the Veteran’s argument that VA failed to exercise the degree of care that would be expected of a reasonable health care provider when it took approximately three hours to transfer the Veteran from the VAMC to a private hospital. In the May 2016 VHA opinion report, the VHA cardiologist opined that VA’s overall treatment provided appeared to be appropriate, although the VHA cardiologist explained that the overall level of care could not be fully evaluated due to the lack of procedures relating to emergent transfers and times for transfer. While the May 2016 VHA opinion was adequate for VA rating purposes (as the opinion concerning VA’s overall level of care was based upon all the available evidence of record), in an abundance of caution, in September 2016 the Board remanded the issue on appeal to afford the AOJ the opportunity to obtain any outstanding records concerning procedures relating to emergent transfers and times for transfer in 2006. On remand the AOJ was informed that the relevant procedural records from 2006 had been destroyed. As such, the AOJ obtained the oldest available records concerning procedures relating to emergent transfers and times for transfer, which dated from 2008 to 2012. Upon receiving the available records concerning procedures relating to emergent transfers and times for transfer, the Board forwarded the records to the VHA cardiologist and asked that the cardiologist review the records and opine as to whether the newly received evidence changed any of the findings from May 2016. Per the subsequently received August 2019 addendum VHA opinion, the VHA cardiologist stated that he was unable to “render any new opinion that is different from the one expressed in my letter dated May 27, 2016.” As the VHA cardiologist opined in May 2016 that the overall treatment provided by VHA, which included consideration of the time it took to transfer the Veteran to a private hospital, appeared to be appropriate, and as this opinion did not change after the VHA cardiologist received the available information concerning procedures relating to emergent transfers and times for transfer, the Board finds no negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing medical care. In other words, the three hour time of transfer does not show that VA failed to exercise the degree of care that would be expected of a reasonable health care provider. The Board finds that the May 2016 VHA opinion and August 2019 addendum opinion are supported by the January 2006 private hospital records. Review of the private treatment records reflect that, while the Veteran was in serious condition upon arriving at the private hospital, there was no indication that the Veteran was near death at that time or that time was of the essence. Further, review of the private treatment records does not indicate that the private physicians expressed any concern about the time it took the Veteran to arrive at the hospital. The Board has given consideration to the Veteran’s arguments and considered the fact that he has previous experience working in hospitals; however, under the facts of this particular case, the Board does not find that the Veteran has the requisite medical training or credentials to be able to render a competent medical opinion regarding whether the dissection of the right coronary artery, and subsequent symptoms, was caused by any negligence or fault on the part of VA. Questions concerning physician skill and dissection of the right coronary artery during a cardiac catheterization are complex medical etiological question. Thus, while the Veteran is competent to relate symptoms experienced after the dissection of the right coronary artery occurred, the Veteran is not competent to opine as to whether or not the dissection of the right coronary artery was due to any deficiency or fault on the part of the VA physician, or whether any symptoms were worsened due to a delay in hospital transfer. See Moray v. Brown, 5 Vet. App. 211 (1993) (regarding causation of retinitis pigmentosa, veteran’s testimony of aggravation of pre existing disability in service was not competent evidence of aggravation, which was medical in nature). Based on the foregoing, the Board finds that the weight of the evidence of record demonstrates that the foreseeable additional disability of dissection of the right coronary artery, caused by a cardiac catheterization performed by VA in January 2006, was not due to negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the medical care, to include the asserted delay in transfer time from the VAMC to a private hospital. The evidence of record reflects that dissection of the coronary artery is a well known risk of cardiac catheterization. VA and VHA cardiologists have opined that VA exercised the degree of care that would be expected of a reasonable health care provider when performing the cardiac catheterization, and the VHA cardiologist was unable to say, based upon the available evidence of record, that the three hour time of transfer showed that VA failed to exercise the degree of care that would be expected of a reasonable health care provider. Further, the evidence reflects that the Veteran gave informed consent to the procedure. For these reasons, the Board finds that a preponderance of the evidence is against the claim for VA benefits under 38 U.S.C. § 1151 for claimed additional disability of dissection of the right coronary artery, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. J. PARKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Blowers, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.